Alexander Jarvis

Freehold Covenants
State who covenantor and covenantee are and what the dominant tenement and
servient tenement is, then state who the successor in title of both lands are. Then
state whether there has been breaches of the covenants and how.
Have the covenants been created properly? Through s.53(1a) LPA 1925; in writing
and signed by covenator (person making the promise). Covenants are continued in
transfer deed.
Burden at equity burden to be passed at equity, theres a test for this. tulk v
moxhay sets out four requirements.
a) Covenant must be negative in substance; this is about substance not form.
Its not about what the covenant says, its about the effect of the covenant
there must be a restriction. If action/expenditure is demanded, it is positive
Hayward v Brunswick (Hand in pocket test).
o Apply to all covenants at once if theres a mixture of negative and
positive obligations then apply Shepherd Homes v Sandhum and split
the 2 covenants in half and treat them separately. If it would be illogical
to separate them then apply Powell v Hemsley, which would mean the
covenant should be interpreted as a neg or pos depending on
whichever element is more dominant should; one element can be
classified as merely a condition on the other overall obligation.
b) Covenant must accommodate dominant tenement; covenant must benefit
to the land, not the person (enjoyed by the landowner for the benefit of the
use of that land).
o Covenantee + his successor must have retained dominant land at
creation of covenant and enforcement respectively LCC v Allen.
o Proximity must live near to each other Bailey v Stevens/Kelly v
Barrett
o Covenant touches & concerns the dominant tenement. Must benefit
the land rather than the person Marquees of Zetland v Driver.
Three sub-tests to this requirement (PA Swift):
- 1) benefits estate owner for the time being (must benefit any owner
whilst he owns land)
- 2) must affect nature/quality/mode of use of dominant land,
- 3) not expressed to be personal (must be relevant to future owners)
note: anti competition covenants can touch and concern land, on
the basis if the dominant land is a business property, then things
which benefit the business on that land may benefit any owner of
that land) Newton Abbott v Treadgold
- 4*) covenant to pay money could be allowed if its to maintain the
dominant land.
- Wrotham v Parkside (Obiter comments): most restrictions could be
deemed to touch and concern land because, put simply, the less
your neighbour can do with his land the quieter your life as a
dominant owner is going to be.
Apply to all (negative) covenants at once.
c) Original parties intended burden to run includes expressly stated
intentions, or implied intentions s.79 LPA (unless excluded, s.79 will have the
affect for the burden to run)
d) Notice the successor in title of the servient tenement must have
notice. The notice must be registered on the charges register, if for registered
land s.32 LRA 2002 or for unregistered land class d2 land charge.
Successor would be bound if notice is registered s.29(2). If notice not

Alexander Jarvis

registered, then purchaser of valuable consideration wont be bound s.29(1).

Where notice is not entered a purchaser is deemed to have notice if they've
inherited or been gifted the servient land and the covenant will amount to an
interest that can override the position on the register.

Benefit at Equity
1) Must touch & concern the dominant land (briefly come back to your argument as
to why the covenants touch and concern the land).
2) Then you have to show it passed either via assignment or annexation or
scheme of development (renols v cowlishaw)
Assignment deliberately passing benefit from yourself to next person. Assignment
requires action between owner and successor of dominant land must be in writing,
and signed by person thats assigning benefit in order to comply with s.53(1a) LPA. If
this is done at the time of the sale of the land, then it is effective. Is there any
evidence of assignment? If it hasnt been assigned then discuss annexation.
Annexation where benefit is attached to the dominant land, it becomes part of the
dominant land, so theres no need to assign the benefit after this. Benefit becomes
part of the land legal glue.
Three forms of Annexation:
o Express annexation
o Implied annexation
o Statutory annexation s.78 LPA automatically annexes the benefit
(Federated Homes v Mill Lodge). Rooke v Chadha & Crest v Nicholson v
McAllister, limit the operation on s.78. Rooke v Chadha; held that you can
exclude s.78 by stating something like this covenant should only benefit
those who are expressly assigned.
Crest v Nicholson v McAllister: in order for s.78 to apply it needs to be clear
from when the covenant is being made, what the benefited land is.
Conclude: will the covenants pass both in terms of burden & benefit.
Remedy: equitable remedies like injunctions are available.

Burden at common law (For positive covenants, remaining, that couldn't pass at
equity)
Burdens do not pass at common law, usually stays with original coventator
(Austerberry). Privity of contract applies. However, there are exceptions to this rule.
Halsall v Brizell mutual benefit and burden rule if performance of an obligation
is quid pro quo with gaining a specific external benefit in return then you cannot
enjoy the benefit without submitting to the burden. For e.g. paying for water supply or
electricity/maintenance costs. Its unfair if successor enjoys the private water supply
without paying for his share (burden). You cannot take the external benefit and avoid
the burden and vice versa. Discuss whether there are other ways in obtaining
water/electricity?
There has to be specific connection between benefit and burden: Rhone v Stephens

Alexander Jarvis

Thamesmead v Allotey benefit cant be something that you are forced to take, must
be something you can choose to opt out of.
Apply to each covenant.
Indemnity chain (not reliable): These dont transfer the burden, but, in a transfer
deed coventator can be made to make a promise that if theres any problems with
future successors then he will have to pay back the original cee; by providing a
means of recovery for someone elses breach. Original owner can sue original
covenanter if certain covenants cannot pass through the above method. The original
covnenator remains liable on the covenant throughout the course of his life s.79.
Because of privity of contract, he was the one that was under the obligation. The
only remedy you can get from such covenants that cannot pass is damages
(Tophams Limited v Earl). You cannot get specific performance because they dont
own the land anymore.
Benefit at common law
The benefit passes at common law; a) express assignment, in writing, from person
with benefit to the new person.
s.136, to assign benefit at common law it needs to be in writing signed by person
assigning the benefit, and there needs to be a notice to the person with the burden
that the benefits been assigned. If you dont know, there are alternatives.
Alternatives: PA Swift, created an implied passing of the benefit; providing that the
four conditions are satisfied; a) touch concerns land not the person b) original parties
must have intended for the benefit to pass (apply s.78 automatic passing, unless
excluded) c) original c'ee held the legal state in dominant land (freehold or leasehold
only - equitable interest wont count), d) successor of dominant land holds legal
estate.
Apply and establish whether positive covenant has passed under common law.
Conclude.
Remedies; damages.